Attorney: "Number 14, would you say that you are biased against other people based on their race?"

Number 14: "Me? No. Definitely not. I treat people as individuals."

I think we can all agree that this is strikingly ineffective voir dire. Research is building an increasing awareness that racism isn't just an overt belief. In the course of the last decade, the research has piled up indicating that the most pervasive and insidious forms of bias are implicit. At present, more than 14 million people have taken the Implicit Association Test (or IAT) that uses subtle differences in reaction time to reliably demonstrate that most individuals have clear and measurable preferences regarding a person's race (and age, gender, sexual preference, etcetera). Of course, potential jurors aren't administered the IAT and won't at any point in the foreseeable future. That leaves in-court questioning as the means to reveal bias, but the unconscious nature of bias and the tendency to provide socially desirable answers can discourage attorneys' attempts to address it in oral voir dire. A new article by Cynthia Lee (2015), law professor at the George Washington University School of Law, however questions that choice.

Entitled, "A New Approach to Voir Dire on Racial Bias," the article notes the conventional view expressed twenty-five years ago by Albert Alschuler who described voir dire on racial bias as "minimally useful," unlikely to lead to honest answers, and likely to be viewed as patronizing or offensive. "While I agree with Alschuler that a simple, close-ended question like, 'Are you going to be biased against the defendant because of his race?' is unlikely to be helpful," Lee writes, "I believe a series of open-ended questions educating jurors about implicit bias and encouraging them to reflect upon whether and how implicit racial bias might affect their ability to even-handedly consider the evidence can be beneficial in helping to ensure a truly impartial jury." In this post, I take a look at Lee's argument and add a few applications of my own.

Looking primarily at research on criminal trials, Lee reviews a fairly robust body of research that shows that calling attention to race motivates jurors to treat blacks and whites equally. In the absence of the reminders, the research indicates that jurors would exhibit more punitiveness and less empathy toward black defendants. As I have written before, there is good reason to believe that racial bias effects civil awards as well. So that is one logical extension of Lee's argument. Another larger consideration, however, is that Lee only focuses on use of voir dire as a de-biasing strategy, and fails to account for the proper role of voir dire, which of course is to guide the exercise of cause and peremptory challenges. In other words, you might try to educate jurors on race, but if you can't or if you're unsure, you can strike them. Let's briefly look at both purposes of voir dire as it relates to racial bias.

Voir Dire to De-bias

Lee's article cites a number of studies on "race salience" or the tendency for various audiences to respond with greater even-handedness when race and the potential for discrimination is brought to mind. For example, in one study, mock juries viewed the same trial videos, with different groups either being asked or not asked about their attitudes toward race and their perceptions of bias beforehand. When salience was induced, the mock jurors exhibited significantly less racial bias at the guilt and sentencing phase. "If a juror is made aware of implicit bias early on," Lee notes, "she can better guard against it influencing her own decision making."

But it is critical for that awareness to emerge in response to open-ended questions and not through the close-ended (yes or no, or "wouldn't you agree") questions that sometimes dominate voir dire. Lee explains, "Open-ended questions that encourage reflection and thought about the powerful influence of race would be better than close-ended questions that simply encourage the prospective juror to give the politically correct response." She shares one example provided by Jonathan Rapping of Gideon's Promise:

You have just learned about the concept of [implicit racial bias]. Not everyone agrees on the power of its influence or that they are personally susceptible to it. I'd like to get a sense of your reaction to the concept of subconscious racial bias and whether you are open to believing it may influence you in your day-to-day decision-making. Let me start by asking for your reaction to learning about the ideas of implicit, or subconscious, racial bias.

Lee adds other suggestions for bringing racial bias to mind, like asking panelists about significant interactions that they have had with members of other races, or about admired African American figures. One idea I would add is to ask about reactions to current events touching on racial bias. For example, most of those called for jury duty today are likely to have heard about "Black Lives Matter" protests in response to recent police shootings. Asking the potential jurors what they know or think about the movement in an open-ended fashion should serve to build salience for the issue of racial bias.

Voir Dire to Expose and Select

Lee's article focuses on the potential use of voir dire as a de-biasing strategy. "Voir dire," she says, "can be used to both educate prospective jurors about the concept of implicit bias and help them to become aware of their own implicit biases." But the legal purpose of voir dire, and pragmatically the best purpose as well, is to investigate and expose issues that are likely to guide your selection. So at least part of the focus should be on identifying those willing to give voice to explicit biases or those who evidently do less to control their implicit biases. You cannot ask jurors to take the IAT, and need to remember that questioning in that format will never be fully diagnostic. But some effort is better than no effort.

One useful rule of thumb is that those who are most emphatic in denying the existence of racial bias are probably the ones who are most susceptible to that bias. So when asking questions like the one above designed to build salience, pay attention to those who express skepticism over the existence, strength, or personal relevance of subconscious bias. When a juror expresses those doubts, pause to ask for a show of hands of the number of other panelists who agree with that juror.

As Lee notes, "Calling attention to race can help minimize racial bias by encouraging jurors to consciously think about the impropriety of racial stereotyping," but it can also shine a spotlight on those who are least likely to notice that impropriety.